SOCIAL MEDIA ETHICS GUIDELINES

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SOCIAL MEDIA ETHICS GUIDELINESOF THECOMMERCIAL AND FEDERAL LITIGATION SECTIONOF THENEW YORK STATE BAR ASSOCIATIONUpdated: April 29, 2019Release Date: June 20, 2019(with revised commentary)Robert N. Holtzman, ChairCommercial and Federal Litigation SectionMark A. Berman, Chair,Committee on Technology and the Legal ProfessionIgnatius A. Grande, Co-Chair,Social Media and New Communication Technologies CommitteeRonald J. Hedges, Co-Chair,Social Media and New Communication Technologies CommitteeOpinions expressed are those of the Section preparingthese Guidelines and do not represent those of the New York State BarAssociation unless and until the report has been adopted by theAssociation’s House of Delegates or Executive Committee.

PREPARED BYTHE SOCIAL MEDIA ANDNEW COMMUNICATION TECHNOLOGIES COMMITTEEOF THE COMMERCIAL AND FEDERAL LITIGATION SECTIONOF THE NEW YORK STATE BAR ASSOCIATIONCO-CHAIRSIgnatius A. GrandeBerkeley Research Group, LLCRonald J. HedgesDentons US LLPSECRETARYGail GottehrerLaw Office of Gail Gottehrer LLCEDITORZahava MoedlerMEMBERSSamuel J. Abate, Jr.Mark A. BermanDaniel M. BraudeCraig S. BrownDamian R. CavaleriPhilip H. CohenKathryn C. ColeJoseph V. DeMarcoDauphine A. DunlapMarcy EinhornSamantha V. EttariTom M. FiniMaura R. GrossmanDavid P. HorowitzDavid JaroslawiczShawndra G. JonesAnthony M. KroeseJanelle LewisDaniel E. LustScott L. MaloufMarc A. MelzerThomas MontefiniseCatherine MontesanoMichael J. ParkerPeter J. PizziGina SansoneDorian W. SimmonsAaron E. Zerykier

TABLE OF CONTENTSPageMembers of the Social Media Committee . iINTRODUCTION . 11.ATTORNEY COMPETENCE . 3No. 1.A: Attorneys’ Social Media Competence . 32.ATTORNEY ADVERTISING AND COMMUNICATIONS CONCERNING ALAWYER’S SERVICES. 6No. 2.A: Applicability of Advertising Rules . 6No. 2.B: Prohibited Use of the Term “Specialists” on Social Media. 10No. 2.C: Lawyer’s Responsibility to Monitor or Remove Social MediaContent by Others on a Lawyer’s Social Media Page . 11No. 2.D: Attorney Endorsements. 12No. 2.E: Positional Conflicts in Attorney Advertising . 133.FURNISHING OF LEGAL ADVICE THROUGH SOCIAL MEDIA . 14No. 3.A: Provision of General Information . 14No. 3.B: Public Solicitation is Prohibited through “Live” Communications . 15No. 3.C: Retention of Social Media Communications with Clients . 174.REVIEW AND USE OF EVIDENCE FROM SOCIAL MEDIA . 20No. 4.A: Viewing a Public Portion of a Social Media Website . 20No. 4.B: Contacting an Unrepresented Party and/or Requesting to View aRestricted Social Media Website . 20No. 4.C: Contacting a Represented Party and/or Viewing Restricted SocialMedia Website . 22No. 4.D: Lawyer’s Use of Agents to Contact a Represented Party . 235.COMMUNICATING WITH CLIENTS . 24No. 5.A: Removing Existing Social Media Information . 24No. 5.B: Adding New Social Media Content . 25

No. 5.C: False Social Media Statements . 26No. 5.D. A Lawyer’s Use of Client-Provided Social Media Information. 26No. 5.E: Maintaining Client Confidences and Confidential Information . 286.RESEARCHING JURORS AND REPORTING JUROR MISCONDUCT. 32No. 6.A: Lawyers May Conduct Social Media Research . 32No. 6.B: A Juror’s Social Media Profile May Be Viewed as Long as ThereIs No Communication with the Juror. 33No. 6.C: Deceit Shall Not Be Used to View a Juror’s Social Media. . 36No. 6.D: Juror Contact During Trial . 36No. 6.E: Juror Misconduct . 387.USING SOCIAL MEDIA TO COMMUNICATE WITH A JUDICIAL OFFICER . 40Appendix.A-1ii

INTRODUCTIONSocial media networks, such as LinkedIn, Twitter, Instagram and Facebook, areindispensable tools for legal professionals and the people with whom they communicate. As useof social media by lawyers and clients continues to grow and as social media networks proliferateand become more sophisticated, so too do the ethics issues facing lawyers. Accordingly, theCommercial and Federal Litigation Section of the New York State Bar Association (“NYSBA”) isupdating these social media guidelines – which were first issued in 20141 – to include new ethicsopinions as well as additional guidelines where the Section believes ethical guidance is needed(the “Guidelines”). In particular, these Guidelines add new content on lawyers’ duty oftechnological competence, attorney advertising, anonymous postings by attorneys regardingpending trials, online research of juror social media use, juror misconduct, and the treatment ofsocial media connections between attorneys and judges.These Guidelines should be read as guiding principles rather than as “best practices.” Theworld of social media is rapidly changing and “best practices” will continue to evolve to keeppace with such developments. Since there are multiple ethics codes that govern attorney conductthroughout the United States, these Guidelines do not attempt to define a universal set of “bestpractices” that will apply in every jurisdiction. In fact, even where different jurisdictions haveenacted nearly-identical ethics rules, their individual ethics opinions on the same topic may differdue to different social mores, the priorities of different demographic populations, and thehistorical approaches to ethics rules and opinions in different localities.In New York State, ethics opinions are issued by the New York State Bar Association andalso by local bar associations located throughout the State.2 These Guidelines are predicated uponthe New York Rules of Professional Conduct (“NYRPC”)3 and ethics opinions interpreting thoserules that have been issued by New York bar associations. In addition, illustrative ethics opinionsfrom other jurisdictions are referenced throughout where, for example, a New York ethics opinionhas not addressed a certain situation or where another jurisdiction’s ethics opinion differs from theinterpretation of the NYRPC by New York ethics authorities.1The Social Media Ethics Guidelines were most recently updated in May 2017.2A breach of an ethics rule is not enforced by a bar association, but by an appropriate disciplinarybodies. Ethics opinions are not binding in disciplinary proceedings, but they may be used as adefense in certain circumstances.3NY RULES OF PROF’L CONDUCT (22 NYCRR 1200.0) (“NYRPC”) (NY STATE UNIFIED CT. SYS.2017). These Rules of Professional Conduct were promulgated as Joint Rules of the AppellateDivisions of the Supreme Court. In addition, the New York State Bar Association has promulgatedcomments regarding particular rules, but these comments, which are referenced in these Guidelines,have not been adopted by the Appellate Divisions of the Supreme Court.1

Social media communications that reach across multiple jurisdictions may implicate otherstates’ ethics rules. Those rules may differ from the NYRPC. Lawyers should consider thecontrolling ethical requirements in the jurisdictions in which they practice.The ethical issues discussed in the NYRPC frequently arise in the information gatheringphase prior to, or during, litigation. One of the best ways for lawyers to investigate and obtaininformation about a party, witness, juror or another person, without having to engage in formaldiscovery, is to review that person’s social media account, profile, or posts. Lawyers mustremember, however, that ethics rules and opinions govern whether and how a lawyer may viewsuch social media. For example, when a lawyer conducts research, unintended social mediacommunications or electronic notifications received by the user of a social media accountrevealing such lawyer’s research may have ethical consequences.Further, because social media communications are often not just directed at a singleperson but at a large group of people, or even the entire Internet “community,” attorneyadvertising rules and other ethical rules must be considered when a lawyer uses social media.4Similarly, privileged or confidential information can be unintentionally divulged beyond theintended recipient if a lawyer communicates to a group using social media. In addition, lawyersmust be careful to avoid creating an unintended attorney-client relationship when communicatingthrough social media. Finally, certain ethical obligations arise when a lawyer counsels a clientabout the client’s own social media posts and the removal or deletion of those posts, especially ifsuch posts are subject to litigation or regulatory preservation obligations.Throughout these Guidelines, the terms “website,” “account,” “profile,” and “post” arereferenced in order to highlight sources of electronic data that might be viewed by a lawyer. Thedefinition of these terms no doubt will change and new ones will be created as technologyadvances. However, for purposes of complying with these Guidelines, these terms areinterchangeable, and a reference to one should be viewed as a reference to all for ethicalconsiderations.References to the applicable provisions of the NYRPC and references to relevant ethicsopinions are noted after each Guideline, and definitions of important terms used in the Guidelinesare set forth in the Appendix.4It may not always be readily apparent whether a lawyer’s social media communications constituteregulated “attorney advertising.” For example, recently-updated American Bar Association ModelRules of Professional Conduct (“ABA Model Rules”) have redefined the scope of attorneyadvertising to include “communications concerning a lawyer’s services” on social media platforms.MODEL RULES OF PROF’L CONDUCT R. 7.1 (AM. BAR. ASS’N 2018).)2

1.ATTORNEY COMPETENCEGuideline No. 1.A: Attorneys’ Social Media CompetenceA lawyer has a duty to understand the benefits, risks and ethical implicationsassociated with social media, including its use for communication, advertising, research andinvestigation.NYRPC 1.1(a) and (b).Comment: NYRPC 1.1(a) provides: “[a] lawyer should provide competentrepresentation to a client. Competent representation requires the legal knowledge,skill, thoroughness and preparation reasonably necessary for the representation.”As Guideline No. 1 recognizes – and the Guidelines discuss throughout –a lawyer may choose to use social media for a multitude of reasons.5 Lawyers,however, need to be conversant with, at a minimum, the basics of each social medianetwork that a lawyer uses in connection with the practice of law or that his or herclient may use if it is relevant to the purpose or purposes for which the lawyer wasretained.Maintaining this level of understanding is a serious challenge that lawyersneed to appreciate and cannot take lightly. As American Bar Association(“ABA”) Formal Op. 466 (2014)6 states:As indicated by [ABA Rule of Professional Conduct] Rule1.1, Comment 8, it is important for a lawyer to be currentwith technology. While many people simply click theiragreement to the terms and conditions for use of an[electronic social media] network, a lawyer who uses an[electronic social media] network in his practice shouldreview the terms and conditions, including privacy features– which change frequently – prior to using such a network.7A lawyer must “understand the functionality and privacy settings of any[social media] service she wishes to utilize for research, and to be aware of any5Prof’l Ethics Comm. for State Bar of Texas, Op. 673 (2018) (discussing ethical restrictions onattorneys’ ability to seek advice for benefit of client from other lawyers in an online discussiongroup).6ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 466 (2014).7Id. Competence may require understanding the often lengthy and unclear “terms of service” of asocial media platform and ascertaining whether the platform’s features raise ethical issues. It alsomay require reviewing other materials, such as articles, comments, and blogs posted about how suchsocial media platform functions.3

changes in the platforms’ settings or policies.”8 The ethics opinion also holds that“[i]f an attorney cannot ascertain the functionality of a website, the attorney mustproceed with great caution in conducting research on that particular site.”9Indeed, a lawyer cannot be competent absent a working knowledge of thebenefits and risks associated with the lawyer’s use of social media. In fact,Comment 8 to Rule 1.1 of the Model Rules of Professional Conduct of the ABAwas amended to provide:To maintain the requisite knowledge and skill, a lawyershould keep abreast of changes in the law and its practice,including the benefits and risks associated with relevanttechnology,10 engage in continuing study and education andcomply with all continuing legal education requirements towhich the lawyer is subject.11Commentary to Rule 1.1 of the NYRPC, which is offered by the NewYork State Bar Association as informal guidance to practitioners, has also beenamended to provide:To maintain the requisite knowledge and skill, a lawyershould (i) keep abreast of changes in substantive andprocedural law relevant to the lawyer’s practice, (ii) keepabreast of the benefits and risks associated with technologythe lawyer uses to provide services to clients or to store ortransmit confidential information, and (iii) engage incontinuing study and education and comply with all8NY City Bar Ass’n Comm. on Prof’l Ethics (“NYCBA”), Formal Op. 2012-2 (2012). Accord D.C.Bar Legal Ethics Comm., Ethics Op. 370 (2016) (“The guiding principle for lawyers with regard tothe use of any social network site is that they must be conversant in how the site works. Lawyersmust understand the functionality of the social networking site, including its privacy policies.”).9NYCBA, Formal Op. 2012-2.10See L.A. County Bar Ass’n Prof’l Responsibility and Ethics Comm., Op. 529 (2017) (ethicalimplications of disclosure of client-related information by attorney to unknown person on socialmedia who, unbeknownst to attorney, was “catfishing,” i.e., assuming a false online identity to getinformation by pretext, and actually was working for opposing party in pending case involvingattorney’s client); Nebraska Ethics Advisory Opinion for Lawyers, No. 17-03 (2017) (circumstancesunder which attorney may receive bitcoin or other digital currencies as payment for legal services,and may hold digital currencies in trust or escrow for client, without violating rules of professionalconduct); see also Jason Tashea, Lawyers Have an Ethical Duty to Safeguard ConfidentialInformation in the Cloud (2018).11See ABA Formal Op. 477R (2018) (discussing the “technology amendments” made to the ModelRules of Professional Conduct in 2012, including to Model Rule 1.1).4

applicable continuing legal education requirements under22 N.Y.C.R.R. Part 1500.12Many other states have also adopted a duty of competence in technologyin their ethical codes. 13 Although a lawyer may not delegate his or her obligationto be competent, he or she may rely, as appropriate, on other lawyers orprofessionals in the field of electronic discovery and social media to assist inobtaining such competence. As NYRPC 1.1 (b) requires, “[a] lawyer shall nothandle a legal matter that the lawyer knows or should know that the lawyer is notcompetent to handle, without associating with a lawyer who is competent tohandle it.”The New York County Lawyers Association (“NYCLA”) ProfessionalEthics Committee has set forth guidance regarding a “lawyer’s ethical duty oftechnological competence” with respect to cybersecurity risk and the handling ofeDiscovery. 14 The NYCLA opinion notes that “[t]he duty of competence expandsas technological developments become integrated into the practice of law” andthat lawyers “ should possess the technological knowledge necessary toexercise reasonable care with respect to maintaining client confidentiality .”15As the use of social media in cases becomes more and more common, theduty of technological competence is expanding to require attorneys to understandthe benefits, risks and ethical implications associated with social media.1612NYRPC 1.1 cmt. 8.13As of this writing, 34 states have adopted a duty of technological html.14New York Cty. Lawyers Ass’n Prof’l Ethics Comm., Formal Op. 749 ( 2017).15Id.16California has also issued an ethics opinion finding that an attorney’s obligations under the ethicalduty of competence evolve as new technologies develop and become integrated with the practice oflaw. Formal Op. 2015-193 described in detail the ethical duties of an attorney in dealing withelectronically stored information during discovery. See Cal. State Bar Standing Comm. on Prof’lResponsibility and Conduct, Formal Op. 2015-193 (2015).5

2.ATTORNEY ADVERTISING AND COMMUNICATIONS CONCERNING ALAWYER’S SERVICESGuideline No. 2.A: Applicability of Advertising RulesA lawyer’s social media profile – whether its purpose is for business, personal or both– may be subject to attorney advertising and solicitation rules. If the lawyer communicatesconcerning her services using her social media profile, she must comply with rulespertaining to attorney advertising and solicitation.NYRPC 1.0, 7.1, 7.3, 7.4, 7.5, 8.4(c).Comment: A social media profile that is used by a lawyer may be subject toattorney advertising17 and solicitation rules.18 Attorneys who communicateconcerning their services using their social media profile(s) must comply withapplicable attorney advertising and solicitation rules. Attorneys should also beaware that if they advertise and provide their services in multiple states, they needto comply with the attorney advertising and solicitation rules in each of thosestates.Sections of the ABA Model Rules of Professional Conduct (hereinafter“ABA Model Rules”) were updated in 2018 to simplify the advertising andsolicitation rules and recognize the use of online communications for attorneyadvertising. The revised ABA Model Rules state that “[a] lawyer maycommunicate information regarding the lawyer’s se

Apr 29, 2019 · a lawyer may choose to use social media for a multitude of reasons.5 Lawyers, however, need to be conversant with, at a minimum, the basics of each social media network that a lawyer uses in connection with the practice of law or that his or her client may use if it is relevant to t

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